Radonich v Radonich
[1999] WASC 165
•13 SEPTEMBER 1999
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RADONICH -v- RADONICH & ANOR [1999] WASC 165
CORAM: PARKER J
HEARD: 3 - 17 MARCH 1999 & 11 MAY 1999
DELIVERED : 13 SEPTEMBER 1999
FILE NO/S: CIV 1334 of 1996
BETWEEN: IVAN VLADOMIR RADONICH
Plaintiff
AND
JURE DRAGOMIR RADONICH
First DefendantRADONICH & COMPANY PTY LTD
Second Defendant
Catchwords:
Equity - Estoppel - Real property - Representations by registered proprietor - Acted on to detriment - Whether registered proprietor estopped from asserting title
Limitation of Actions - Land - Title by possession - Whether tenant at will or licensee - Possession by licensee not adverse - Limitation Act 1935 (WA), s 9
Limitation of Actions - Land - Title by possession - Joint tenancy - Whether adverse possession necessary - Licensee - Possession not adverse - Limitation Act 1935 (WA), s 14
Paradise Beach Transportation Co Ltd v Price Robinson [1968] AC 1072 not followed
Limitation of Actions - Land - Title by sole receipt of profits - Joint tenancy - Profits received by consent of other joint tenant - No legal right to sole receipt of profits - No right to sole title created - Limitation Act 1935(WA) s 14
Legislation:
Limitation Act 1935 (WA) s 5, s 9, s 14
Result:
Defendant's claim to have acquired sole legal and beneficial ownership of plaintiff's interests in three pieces of land dismissed.
Representation:
Counsel:
Plaintiff: Mr C B Edmonds
First Defendant : Mr R I Viner QC & Mr K E Yin
Second Defendant : Mr R I Viner QC & Mr K E Yin
Solicitors:
Plaintiff: Paynes
First Defendant : Frank Unmack & Cullen
Second Defendant : Frank Unmack & Cullen
Case(s) referred to in judgment(s):
Attorney-General (HK) v Humphrey's Estate (Queen's Gardens) Ltd [1987] AC 114
Baumgartner v Baumgartner (1987) 164 CLR 137
Beaton v McDivitt (1987) 13 NSWLR 162
Caltex Properties Limited (in liq) v Love and Ors, unreported; SCt of WA (Parker J); Library No 970237; 11 May 1997
Cobb v Lane [1952] 1 All ER 1199
Commonwealth v Verwayen (1990) 170 CLR 394
Crabb v Arun District Council [1976] Ch 179
Culley v Doe d Taylerson (1840) 11 AD & EL 1008
Dillwyn v Llewelyn (1862) 31 LJ Ch 658
Errington v Errington and Woods [1952] 1 KB 290
G Street v Mountford [1985] AC 809
General Discounts Pty Ltd v Crosby [1968] Qd R 418
Ghilarducci v Ghilarducci (1993) 134 ANZ Conv R 331
Ghilarducci v Ghilarducci, unreported; FCt SCt of WA; Library No 920365; 15 July 1992
Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199
Grant v Edwards (1986) 3 WLR 114
Greasley v Cooke (1980) 1 WLR 1306
Green v Green (1989) 17 NSWLR 343
Guimelli v Guimelli [1999] HCA 10
Hardwick v Johnson [1978] 1 WLR 683
Heslop v Burns [1974] 1 WLR 1241
Hill v O'Brien (1938) 61 CLR 96
Hughes v Griffin [1969] 1 WLR 23
Jones v Jones (1977) 1 WLR 438
Lackham v Orange City Council (No 2) [1968] 2 NSWR 667
Legione v Hateley (1983) 152 CLR 406
Leigh v Jack (1879) 5 Ex D 264
Lewis v Bell (1985) 1 NSWLR 731
McWhirter v Emerson-Elliott (1960) WAR 208
Middleton v Young, unreported; SCt of WA (Wilson C); Library No 0634; 17 March 1969
Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1988) 81 FCR 475
Moses v Lovegrove [1952] 2 QB 533
Muschinski v Dodds (1985) 160 CLR 583
Olssen v Dyson (1969) 120 CLR 365
Paradise Beach Transportation Co Ltd v Price Robinson [1968] AC 1072
Pascoe v Turner (1979) 2 All ER 945
Radaich v Smith (1959) 101 CLR 209
Raffaele v Raffaele (1962) WAR 29
Ramsden v Dyson (1866) LR 1 HL 129
Riches v Hogben (1986) 1 Qd 315
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Willmott v Barber (1880) 15 Ch D 96
Wood v Brown [1984] 1Qd R 593
Case(s) also cited:
Allen & Anor v Roughley & Ors (1955) 94 CLR 98
Beaton v McDivitt & Anor (1987) 13 NSWLR 162
Beaumont v Hochkins (1889) 15 VLR 442
Booker v Palmer (1942) 2 All ER 674
Buckinghamshire County Council v Moran [1990] 1 Ch 623
Chaka Holdings Pty Ltd v Sunsum Pty Ltd (1987) NSW Conv R 55
Clement & Ors v Jones & Ors (1909) 8 CLR 133
Cooke & Ors v Dunn, unreported; SCt of NSW (Santow J); 7 August 1998
Green & Ors v Green (1989) 17 NSWLR 343
Guimelli v Guimelli, unreported; SCt of WA; Library No 960249; 8 May 1996
Hawkins v Clayton Utz (1988) 164 CLR 539
Hayward v Chaloner [1988] 1 QB 107
Horrocks & Anor v Forray [1976] 1 All ER 737
Hounslow LBC v Twickenham Garden Developments Ltd [1971] 1 Ch 233
Ian Rumney Office Equipment Pty Ltd v State of Tasmania, unreported; SCt of Tas (Zeeman J); 18 June 1997
ICI Alkali (Aust) Pty Ltd (in liq) v Commissioner of Taxation [1977] 1 VR 393
Inwards v Baker (1965) 1 All ER 446
Kitchen v Royal Airforce Association [1958] 1 WLR 563
March v Neumann [1945] SASR 167
Murnane v Findlay [1926] VLR 80
National Provincial Bank Ltd v Ainsworth [1965] AC 1175
Petkov & Ors v Lucerne Nominees Pty Ltd (1992) 7 WAR 163
Plimmer & Anor v The Mayor, Councillors and Citizens of the City of Wellington (1884) 9 App Cas 699
Powell v McFarlane & Anor (1977) 38 PC&R 547
R v Toohey & Anor ex parte Meneling Statin Pty Ltd (1983) 158 CLR 327
Richardson & Anor v Greentree & Ors, unreported; SCt of NSW (Einstein J); 1 December 1997
Riley v Penttila [1974] VR 547
Stanley Malter & Felicity Malter v Boris Procopets, unreported; SCt of VIC (Smith J); 79; 28 September 1998
Sterne v McCarther (1988) 165 CLR 489
Wallis' Clayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] 1 QB 94
Wheeler v Mercer [1957] AC 416
Wik Peoples Ltd (in liq) v Love, unreported; SCt of WA; Library No 970237; 14 May 1997
PARKER J: The ownership of three pieces of land is disputed by two brothers and a family company of which one of the brothers has substantial control.
Two of the pieces of land may be sufficiently described as Lot 17 Rockingham Road, Munster ("Lot 17 Rockingham") and Lot 126 East Churchill Avenue, Munster ("Lot 126 Churchill"). The plaintiff is the registered proprietor of an estate in fee simple of each of these. The plaintiff and the first defendant are the registered proprietors of the third piece of land as joint tenants of an estate in fee simple. This property is Lot 192 Rowley Road, Jandakot ("Rowley").
There are other lots adjoining Lot 17 Rockingham which are owned at present by other members of the family viz Lot 15 owned by another brother Boris Radonich and Lot 16 owned by the first defendant. There are also lots adjoining Lot 126 Churchill which are owned by other members of the family at the present time viz Lot 123 owned by the first defendant and Lots 124 and 125 owned by Boris.
What may be loosely described as the family market gardening business had been conducted principally on the combined Rockingham Road properties which I have identified and also to a lesser degree on Rowley. Those properties are still utilised by the family business but now other properties are also used. At present, and since 1989, this business has been conducted by the second defendant of which the first defendant is the managing director. Before 1989 the business was conducted by a succession of family partnerships of which, since 1970, the first defendant had effective control.
The plaintiff inter alia seeks orders requiring the defendants to deliver up possession of Lot 17 Rockingham and Lot 126 Churchill. He also seeks orders for the sale of Rowley and an equal division of the proceeds.
By their defence and counterclaim, the defendants inter alia claim that the plaintiff has abandoned his interest in each of the three properties in dispute in favour of the first defendant and is estopped from asserting that he is entitled to any right of ownership or possession in respect of any of them.
With respect to Lot 17 Rockingham and Rowley the defendants also rely on the Limitation Act 1935 contending that the first defendant has acquired title by possession from the plaintiff, in the case of Rowley sole title.
It is the defendants, more pertinently the first defendant, that bear the effective onus of proof in this action. They seek to displace the title of the registered proprietor in respect of each of the three pieces of land in dispute.
This action involves many members of the Radonich family. To avoid confusion the relevant parties will be referred to by their first names; and in this respect the anglicised name by which they are usually known will be used.
Events preceding 1970
The parents of the plaintiff and the first defendant, Joseph and Yoka Radonich, were immigrants to Australia from the then Yugoslavia. They had three sons each of whom was born in Western Australia. The plaintiff, Ivan Vladomir Radonich, usually known as John, was born in 1936. The first defendant, Jure Dragomir Radonich, usually known as George, was born in 1940. Boris Anthony Radonich was the third son. He was born in 1954.
The evidence reveals that during his life Joseph, the father, as head of the family, generally made the commercial decisions for the family and was the controlling force of what was then the family market gardening business. In 1935 the father had purchased Lots 15 – 17 Rockingham Road ("the Rockingham Road properties") together with adjoining properties which also have since been disposed of, and Lots 122 – 126 Churchill Avenue, Munster ("the Churchill Avenue properties") together with adjoining properties which also have since been disposed of.
The parents established their family home on the Rockingham Road properties working some 10 acres of this holding as a market garden; the remaining approximately six acres was used mainly as a limestone quarry at least until the father died in 1970. The Churchill Avenue properties appear to have been used primarily as a limestone quarry until the late 1970's.
John grew up on the Rockingham Road properties, helping in the family market gardening business during his school days and working full-time in it after he left school until he moved interstate in 1957.
George also grew up on the Rockingham Road properties and helped in the business until he left school in 1953. Since then he has been employed full-time in that business and, following the death of his father in 1970, he has effectively been the controlling force of the family business. When he married his wife Gloria in 1964, George and Gloria moved into the old family home with George's parents. The old home had been constructed on Lot 16 Rockingham. A year or two later the parents moved to a new home they had built on Lot 15 Rockingham. The mother, Yoka, continued to live in the new home, after the death of the father in 1970, until her death in 1982.
The third son Boris also grew up on the Rockingham Road properties, living with his parents and then his mother until her death and, it seems, has occupied the new home the parents built since the death of his mother in 1982. He too helped in the family business while he was at school and has worked full-time in it since he left school.
On 17 August 1955 the father purchased Rowley but effected the registration of ownership in the names of John and George as joint tenants. Rowley comprised some 142 acres. Evidence was led for John that Rowley was purchased as a longer term investment for the two sons although to be put to use in the meantime. On the other hand it was George's evidence that when the father purchase Rowley he said words to the effect:
"That’s a beautiful property for a market garden and you two boys can one day be able to establish a big beautiful market garden and be your own bosses, I want the two of you to work this as a market garden, that’s why I'm buying it for you."
I would observe that, if they were his words at the time, his appreciation of the quality of the property and its potential as a market garden does not appear to have been immediately realised, as will appear. Indeed I am satisfied that it is only with more modern fertilisers, irrigation and agricultural techniques that have been employed since the late 1970s that Rowley has been really worthwhile for market gardening.
Without more, I was not able to be confident that one of these differing recollections was to be preferred to the other. As will appear, however, I have been persuaded that John's recollection is the more reliable in this and other respects.
While it was the evidence-in-chief of George that nothing at all was done with Rowley until 1958, after John had moved interstate, when George personally and at his own expense developed Rowley for market gardening, I am satisfied that from the time of the acquisition of Rowley in 1955 work was undertaken by their father and John, no doubt with George helping at times, to improve the fencing, effect some clearing and plant olive trees. By the end of 1957, however, it was apparent that the olives were not going to be successful and, in 1958, the father with George's help commenced to develop and use Rowley for market gardening. This seems to have been pursued by them until the father's death in 1970. It involved a limited amount of clearing of Rowley to enable some cropping in those parts of the property which offered the most obvious potential for market gardening. A pump and irrigation facilities were installed. The evidence does not indicate that any extensive area of Rowley was used for crops. The evidence suggests that there was not continuous cropping throughout those years.
As indicated, it is the effect of the evidence of George that until 1970 he paid for the outgoings in respect of Rowley such as rates and taxes, and for the clearing, the irrigation equipment and the expenses of preparing the ground and producing and harvesting the crops. I am satisfied there were expenses of this type. I am also satisfied there were returns from the crops. It is clear that John contributed nothing to these expenses and received no part of the proceeds.
I am not persuaded, however, that the expenditure was met by George personally. There is no independent evidence. George's account seems quite inconsistent with the general effect of his and other evidence as to the financial stringency experienced by George during this period and the poor financial provision made available to him (and others) by the father even after George married in 1964. It is also the general effect of the evidence that the father's role as head of the family led to him having effective control of the family business, especially the finances, while he was alive and also a substantial influence over the respective affairs of the members of the family. It appears from George's own evidence that he received only small amounts of what may be best described as pocket money for his work, both before and after his marriage in 1964, although the family market gardening business met all the ordinary expenses of his living and personal costs. This is borne out by the evidence of Boris which indicates that he was similarly treated until after the father's death when Boris was put on a regular wage for the first time. It is also the effect of Gloria's evidence that, from the time she had contact with the books of the family market gardening business when she married George in 1964, expenses in respect of Rowley were met by the business. It is also consistent with the father's observations to Gloria in 1964 to the effect that "we also have a block at Jandakot" (Rowley) and "George and I have some turnips growing there". Having regard to all of this, it appears to me to be more probable than not that after John left in 1957 and during his father's lifetime George found it convenient, if indeed he thought about the matter at all, to deal with Rowley on the basis that the development and cropping undertaken on Rowley was undertaken as an aspect of the family market gardening business and that the costs in respect of Rowley were met by the father from the resources of the family business. So, too, it is more likely than not that any returns from Rowley were received by the family business.
In short it is more probable than not that from 1955, during the father's lifetime, Rowley was treated for practical purposes as one of the family properties, its use being by, and at the expense of, the family market gardening business. Just what internal accounting, if any, there might have been within the family and its business, and what distinction, if any, might have been made about Rowley for income tax and partnership purposes, remain mysteries as to which I am unable to make findings on the evidence which I am able to accept. It has not been established that George directly met any of the expenses associated with Rowley until the father's death in 1970, or that he directly received any of the returns from its use. As a partner in the family business during much of this time he did so indirectly.
There was a suggestion that, in the accounts, relating it seems to the partnership which conducted the family business, there may have been a separate treatment of George and perhaps also of John at least at some stage, so that expenses incurred with respect to or on behalf of each of them would be brought to account against any notional earnings or distributions from the family business. However there were no accounts, records or other evidence to substantiate this. While that has a ring of commercial normality about it, the evidence I am prepared to accept falls far short of enabling any finding on this issue.
Neither is there a sufficient basis in the evidence to persuade me that there was a separate partnership between John and George established when Rowley was acquired in 1955 or at some time between then and 1957 when John moved interstate. While George's evidence was express in this respect it was quite unsatisfactory in its detail and effect, and is denied by John. There is no documentary or independent evidence. As I have indicated, from what is revealed of the general circumstances of the family and its affairs, the greater likelihood appears to me to be that during the father's lifetime Rowley was treated as another of the family properties by the father, even though registered in the names of the sons, and that the father, rather than John or George, made the effective decisions as to its use in that time and met the expenses incurred in respect of it, as expenses of the family business. I find accordingly.
It is clear that by the mid-1950's John had an ambition to branch out from the family market gardening business and to try his hand at cartage contracting. In particular he had an ambition to try his hand at operating on the east-west truck route. Late in 1957 a prime mover and trailer unit (a semi-trailer) was purchased and John left WA with the intention of pursuing his ambition. On the evidence I readily find that the parents wanted John to stay and help with the family market gardening business, but they did not stand in his way. On some basis or other, which is not made clear in the evidence, the father facilitated the venture by buying, or enabling the acquisition of, the truck and trailer.
Again there is dispute between the evidence of John and George as to the financial circumstances of the purchase of this truck and trailer and as to the financial basis on which John operated. George contended it was an asset of a partnership between John and himself. John contended that it had been purchased, by their father, their mother, George and him utilising finance from Esanda, which finance was secured when he, George and their father went to Esanda for this purpose. It is apparent that neither John nor George had the means to purchase the truck and that the father enabled the funding of the purchase. At that time John was a partner in the family business. George was still a juvenile and not a partner although he was admitted into the partnership with his father and mother, in place of John, some time after John left home in 1957. Whether the truck was in truth an asset of the family business or of John is not an issue I can resolve, but I am persuaded as a matter of probability that it was not an asset of a partnership between John and George. I note that John was later able to dispose of the truck and trailer, apparently without reference to the father or George, which suggests it was registered in his name.
It was also suggested there may have been a plan to diversify the family business by establishing a trucking business to operate in conjunction with it, although on what basis did not emerge. Once again the evidence in these respects was not clear or satisfactory and none of it is independently supported. It is clear that John went off with the truck and trailer to operate as a cartage contractor and I accept that, because John was financially strained, some of the hire purchase payments on the truck and trailer, and even until the late 1960s some other accounts in respect of the expenses of John's trucking venture, found their way back to Perth where, on balance, I am persuaded they were paid by the father utilising the funds of the family business, not by George as he suggested.
In the few years following 1957 John upgraded both the prime mover and trailer unit, at different times, and it seems more than once. It was John's evidence that some of the costs of doing this were met by the family business, but he met the balance. George's evidence was that he paid for some of these costs. The evidence, however, does not reveal how he would have had such money personally. Again I am persuaded that, on balance, the costs which were not met by John were paid by the father utilising funds of the family market gardening business. How these costs were treated for accounting purposes is not disclosed by the evidence.
In making these findings I have taken into account that in 1993 George asserted to John that he had met costs associated with the truck and trailer, and that John then accepted his assertion as true, although he had not known of this until then. Nevertheless, on the evidence George has not established that he personally met expenses associated with John's trucking venture, except that after he became a partner in the family market gardening business at some time after John moved interstate in late 1957 George indirectly bore a share of the expenses paid by that business.
The general effect of the evidence, scant as it is for this purpose, persuades me on balance that the parents hoped that John would return to Perth, which was his expressed intention, and that one way this could occur was for him to establish a trucking business so that it could be run in conjunction with the market gardening business. It is more likely than not that the father supported him in the trucking venture, in part at least, with this possibility in mind. John did not repay the moneys paid by the father, nor, on the evidence, was he asked to do so.
It was John's evidence that he wanted to prove he could make a success of his own life, in particular by succeeding in the trucking business, and that when that had been achieved this he planned to return to Perth. Competition for the east-west truck run proved to be fierce and John struggled financially. Although he occasionally made a journey to Perth, when he stayed at the family home, the evidence satisfies me that he quickly concentrated on other trucking routes on the east coast, in order to try and survive financially. As events turned out, John did not return home to live and work, although he has visited his family from time to time over the years. After a little more than a decade John came to move from the trucking industry, which had been a financial and personal failure for John, to the construction industry. I will return to that in due course.
It was George's evidence that when John set off with the truck in 1957 he said words to the effect that George could have Rowley to do with it as George pleased and that he wished to have no more to do with it, ie effectively he then abandoned his interest in and rights to any entitlement in the property in favour of George. This, on the evidence of George, was consistent with John's position at that time and over the years that followed, which position was that John had turned his back on the family and the family market gardening business and wanted nothing to do with them.
John's evidence was firmly to the contrary. It was to the effect that there was no specific discussion with George or his father about Rowley when he set off on the trucking venture in 1957. Importantly, he was very definite that he did not then, or later, hold the view that he rejected any interest in the family business or in Rowley, or that he abandoned his interest in Rowley in favour of George. On the contrary, he then saw the trucking venture as a means of proving himself after which he continued to hold an expectation of returning home. In his mind when John left home (and it remained so) Rowley was an asset he shared with George which could be realised at a beneficial time but which, in the meantime, was viewed by his father as of use to the family market gardening business. In assessing the position I am persuaded it is of some significance that there had already been established a pattern whereby the father, with the implied concurrence of John and George, had substantially assumed the management of Rowley for the purposes of developing it as a part of the family business and at its expense. John was leaving home, but his father remained behind and was still a significant controlling force of the family business, the family and the family finances. George was still a juvenile and had no independent means and in practical terms almost no income, even though he was later admitted to the partnership. There is no evidence other than that of John and George on this issue. While the probabilities as to this disputed and critical step in the history of events material to this case tend in my view to favour John's recollection over George's, as this dispute is at the heart of the issues in this case it is preferable to view the total effect of the evidence before making final findings. This will be done later in these reasons.
I accept that, at least in the initial decade from 1957 and until the end of the 1960s, John struggled financially and was forced to live fairly roughly. He had no permanent place of residence and often stayed with friends or slept in the truck. Because of his itinerant lifestyle George had to make extensive enquiries of acquaintances in 1959 and 1969 to find where John was staying, in order that George could visit John. It is also evident that John did not maintain regular contact with his family. I am persuaded that this was due in some part at least to his personal pride. He was very embarrassed that the trucking venture was not successful. For this reason I am persuaded that if John did telephone home he would try to speak to George rather than his parents because he felt his embarrassment most in relation to his parents. Another factor may have been his desire to avoid pressure from his parents about returning home to live.
John did, however, return home on occasions over these years. Mostly those occasions were associated with events such as 21st birthday parties, weddings and such celebrations of family members or close friends. It is not disputed that John was made welcome on those occasions. After John left the East-West truck route I am satisfied he returned home three times between 1959 and 1965. It seems to have been a feature of John's return visits to Perth that the family would often celebrate his presence with a party for family, friends and neighbours. It is also clear that whilst John's parents were generally minded to try to persuade him to stay in Perth, they were not insistent about this and accepted his preference to return interstate. Neither his parents nor the family ever turned their back on him. He remained accepted and welcomed as a member of the family. Even though bills in respect of his trucking venture would sometimes find their way home, even until the late 1960s, they were always paid.
The evidence also persuades me that in the mid-1960s, John lost his driver's licence as a consequence of traffic offences. A driving licence was critical to his trucking venture. He found a way of manipulating the distinct licensing arrangements of each State by using the false name of John Farrell to obtain another driver's licence in another State. By this means he continued to drive as a licensed truck driver even though his original licence had been cancelled. It was not long after this that he came to obtain the first of a number of specialised machinery licences eg. as a crane operator. For this purpose he used, of necessity, the driver's licence he held in the name of John Farrell. I am satisfied that, as a consequence, whenever he came to obtain a further specialist machinery licence, this too was in the name of John Farrell. These specialist machinery licences were acquired by John in the course of a gradual process by which eventually he ceased his unsuccessful trucking venture and moved to the construction industry. He became established in the construction industry by this process. As a consequence of the driving and machinery licences he held, John came to be generally known in the construction industry as John Farrell although, I am satisfied, simultaneously he was known as John Radonich by friends from the trucking industry and by family and other friends. I accept that for the purposes of what became by the late 1960s, his regular employment in the construction industry, and as a consequence for purposes such as banking and income tax returns, John used and became generally known by the name John Farrell, although I am persuaded he never abandoned the use of John Radonich with those who had known him by that name.
The Partnerships until 1989
The evidence about the composition of the partnerships until the death of the father in 1970 is vague and not independently substantiated. From the pre-World War II days until the 1950s the family market gardening business appears to have been conducted by and in the name of the father. He too owned all the real estate. In the early 1950s a partnership was formed between the father and the mother. It was said this was for tax purposes. So far as appears it made no difference to the management of the business which remained firmly the province of the father. At some stage before 1957 John was admitted to the partnership. After John left home in 1957, precisely when is not revealed, John ceased to be a partner and George took his place. That remained the position until after the death of the father in 1970. There are no partnership records of any type produced in evidence for this period. These are only some accounting records from the mid 1980s and some registration records. There are no details whatever as to the nature or form of the partnership at any time and no means of determining what arrangements were in place as to capital or income.
There is a marked divergence in the evidence as to changes in the composition of the partnership following the death of the father in 1970. The evidence of George, Gloria and Boris would suggest that when the father died the mother ceased to be a partner as well, and Gloria and George conducted the family market gardening business in partnership until 1974 when Boris was admitted as a partner. That position, on their evidence, continued until the second respondent was incorporated in 1989. However, evidence in the form of registered particulars of the business name Radonich & Co, under which the partnership conducted the business, suggests a different history. By these records it appears that from 4 August 1970, following the death of the father, until 5 July 1974 the partners were George, Gloria, Yoka (their mother), and Boris. Following the execution of a deed of family arrangement to which reference will be made later, from 5 July 1974 until 1 July 1982 the partners were George and Gloria. Following the death of their mother, from 1 July 1982 until 26 June 1989 the partners were George, Gloria and Boris.
I find the registration records to provide a more reliable source and find in accordance with them.
Since the incorporation of the second respondent in 1989 it has conducted the family market gardening business. Originally George, Gloria and Boris were shareholders and directors, with George the Managing Director. The only change since then appears to have been the admission of George's eldest son Peter as a shareholder. He may also be a director.
Events between 1970 and 1982
Joseph, the father of the family, died intestate on 23 July 1970. John returned home just before he died having been called by George.
There was evidence from both John and George that following their father's death there was a discussion between the brothers about the future. On John's evidence, but contrary to George's evidence, their mother participated. Boris did not. It was the effect of John's evidence that he knew it was his role as the eldest son to take on the responsibilities previously carried by his father, especially of managing the family business and looking after his mother. While he knew that to be his responsibility he was not eager to accept it, especially as he considered he had not yet proved himself. His trucking venture had been a failure and he was just starting to get established in construction. Hence, he was greatly relieved when George made it clear that George was willing to take on that role. He readily accepted George's offer to take on the responsibilities, in effect, of head of the family. As a consequence John felt free to return to the East and he did so to continue in the construction industry. At the time it was expected that the three sons would share in their father's estate by each taking one of the three Rockingham Road properties, and John's evidence was that he told George and his mother that George could continue to have the use of his anticipated inheritance of one of the Rockingham Road properties to continue to conduct the family business as it had been previously conducted by their father. Although not expressly mentioned it was implicit in this that he might also continue to have the use of Rowley for the same purpose. Although not expressly spelt out it was his understanding of the previous use of the Rockingham properties and of Rowley that the family business should have the profits, but meet the expenses, of doing so. Nevertheless, John's evidence was clearly to the effect, once again, that he did not turn his back on the family business or suggest to George that he had no interest in it, or in any of the properties, and he did not say or imply that he renounced any interest he had or might be entitled to in any of the properties in favour of George.
By way of complete contrast, it was George's evidence that at the time John returned to Perth for his father's funeral, John remained completely disinterested in the family properties and the family market gardening business, so much so that he continued in his attitude expressed in 1957, and repeated since then, that George should have and use Rowley as his own as John wanted nothing more to do with it, and that equally John wanted to have nothing to do with any interest in the Rockingham or Churchill properties as a consequence of his father's death. George did agree that he proposed to John that he should take on the conduct of the family business and assume the responsibility of caring for their mother, although his evidence in this regard was put more on the basis that he was really forced to do this because John was not prepared to accept these responsibilities that were John's, as eldest son. On George's evidence, John's refusal to accept this responsibility and his complete disinterest in the family business and properties went entirely hand in hand. In effect, as George saw it, John turned his back on his family and the business, and wanted to disassociate himself from everything to do with them, including the properties that their father had owned and Rowley (just as he had done in and ever since 1957). It was on this basis, on George's evidence, that by default he was obliged to step into the shoes of his father. He did so, he said, on the basis of the assurance of John in effect that George should have all of the property interests of John, or to which John might become entitled, that were associated with the family business. I will return later to that fundamental divergence between John and George.
It was common ground that following the father's death, the family business continued under the primary management of George. The Rockingham and Churchill properties and Rowley continued to be used by the family business. The family business in my finding received the profits from all of these properties and met the expenses of their ownership, development and use. Financial provision was also made through the family business for their mother until her death in 1982, she and Boris continuing to live in the new house on Lot 15 Rockingham. John continued to live interstate, during much of the 1970's in New South Wales and then in Victoria, and to be employed in the construction industry. He visited the family in Perth at least in 1974 and 1980 and was always welcomed. Boris worked with George and other members of the family in the family business.
I should record my acceptance of the evidence, which includes that of George, his wife Gloria and Boris, that the family market gardening business was not always a flourishing concern. There were often difficult times financially and it was only by virtue of persistent hard work by the parents during their lives, and by George and his family, with Boris, thereafter, that the business has survived, developed and prospered, as will appear.
There remained in 1970, however, the distribution of the estate of their father. I accept that, at the insistence of their mother, solicitors were retained to assist her as the administrator, although much of the instructions were given by George. John had no part in instructing the solicitors. While the evidence provides little detail of the progress of this matter, the outcome is clear. In consultation with the solicitors, on 8 May 1974 a deed of family arrangement was executed in relation to the father's estate by which there was to be transferred:
•Lot 15 Rockingham Road to Boris,
•Lot 16 Rockingham Road to George,
•Lot 17 Rockingham Road to John, and
•Lots 122-126 Churchill Avenue to their mother.
These four family members were parties to the deed of family arrangement.
It was John's evidence that this distribution of the estate was agreed to by him when it was put to him by George. It reflected what had been anticipated when John, George and their mother discussed the future after the funeral of their father. By this distribution each brother took an equal share in the Rockingham Road properties and their mother took all the Churchill Avenue properties. This, he said, recognised and was in accord with his expectation as to his inheritance and his continued interest in the family and his continuing intention one day to return to Western Australia to take up his interests. In the meantime the arrangement reached with George and their mother after their father's death in 1970 continued. Although it had not been expressly discussed it was John's expectation that all expenses in respect of his properties would be met, and the profits would be retained, by the family business.
George's evidence was again in marked contrast. He insisted that despite the terms of the 1974 deed of family arrangement John continued to eschew any interest in the family business and the properties and he wanted no part of them. He was adamant that the deed of arrangement did not disturb in any respect John's position that all of his interests in any of the family properties were George's, and that John had in effect abandoned them in favour of George.
George explained the terms of the deed of arrangement, which were prepared on his instructions, as being something he understood from the solicitor to be a necessary legal formality which the family had to go through to wind up the estate of the father, and not something which in any way revealed or evidenced that John had in truth any desire to own or have any interest in Lot 17 Rockingham. On George's account the deed of arrangement did not contradict his evidence that John had abandoned his prospective interest in Lot 17 Rockingham to George after their father's death in 1970, just as in 1957 he had abandoned his interest in Rowley in favour of George. In these critical matters the position of John, after the deed in 1974 was, according to George's evidence, as it had been at the time of the death of their father in 1970. I will return to this later.
In keeping with the picture painted by George's evidence of John's complete disinterest in the family, the business and the properties, it was George's evidence that after talking to the solicitors he had rung John and discussed the terms of the deed as proposed by the solicitors. John showed no interest but agreed to sign whatever was needed to finalise the estate, so that when the deed was ready George posted it to John who returned it by mail after John had executed it. John's evidence, again in marked contrast, was that George and he had indeed discussed the terms of what was proposed by telephone and that John agreed to each of the three sons receiving one of the Rockingham Road lots with their mother having all of the Churchill properties. When the deed was eventually prepared, however, it was John's evidence that he made a special trip to Perth to execute the deed and finalise the arrangements. He said that all four parties to the deed, ie their mother and the three sons went together to the solicitors office to execute it. The deed is now in evidence. The signatures of all four parties are witnessed by Mr A Torre, who was then a partner in the firm of solicitors which acted in the administration of the estate. In my finding this bears out the evidence of John concerning the deed which I therefore accept. It also indicates, in my view, that John was not then showing complete disinterest in the affairs of the family or in the distribution of the property comprised in their father's estate as George's evidence would suggest. John's conduct on this occasion in making the journey to Perth (and leaving aside the terms of the deed to which I'll return later) in my assessment provides in itself some contemporary indication that John had a real concern for the affairs of the family and a real interest in receiving what he described in evidence as his inheritance.
It is convenient to mention at this point the matter of the probate and estate duties payable in respect of the death of the father. George and Gloria gave evidence that they had met these duties personally. George put the duties about $16,000 and he stressed that it took four years of hard work and financial stringency for them to meet this expense. Significance was attached to it as these duties were an expense in respect of the whole of the estate, including Lot 17 Rockingham, and that John made no financial contribution. Thus it was contended for George that the payment of the duties could be seen as some confirmation that it was George's and John's expectation that George was in truth to have the benefit of Lot 17 Rockingham. George said he paid the duty because he thought the properties would be his. Further, it was another factor which might weigh in favour of the fairness and equity of George now enjoying the full proprietary interest in Lot 17 Rockingham. It is accepted that John made no contribution to the payment of the duties or to any of the expenses of the administration of the estate. I accept from the evidence that the duties totalled in the order of $10,000, not $16,000. There were undoubtedly legal fees as well, but the evidence does not establish their amount. I note, however, that there was over $8,000 in cash in one of the bank accounts of the father at the time of his death and it is clear that during the period of the administration of the estate income was being earned by the estate. While these issues were not fully explored during the trial I am not able to find that it was necessary for the whole of the amount of the duties payable to be found from outside the estate. In substantial part they could have been met by the estate itself. Indeed it is the effect of one of the terms of the deed of family arrangement that the funds in the estate were expended on duties and the expenses of administration. Further, the duties were in respect not only of Lot 17 Rockingham, but of all of the Rockingham properties including Boris' lot, and all of the Churchill properties which passed to their mother, as well as the other assets of the estate. These matters detract significantly from the force of the arguments that were sought to be advanced in support of George's case from the payment of the duties.
There is a further significance in my finding, however, to this issue of the death duties. I have no doubt that George and Gloria did experience financial stringency by virtue of the need of the estate to meet death duties and the legal and other expenses of the administration of the estate. It may well be that in truth they did need to contribute some of their own money, although whether that was so and, if so, what amount, I cannot reach findings about on the evidence. The stringency they experienced, however, demonstrates the practical reality of the way in which in truth the financial affairs of the family business and the financial affairs of the partners were in practice treated as one, and how they were under the substantial practical control of the person who performed the role of head of the family.
It was John's evidence that by 1975 he had managed to get on his feet. By then he had met and formed a permanent relationship with Yvonne, a lady who became and remains his de facto wife. She changed her name by deed poll to Farrell. They have lived as Mr and Mrs Farrell since then.
It was John's evidence that in 1975 George requested that John led him $10,000 to buy a truck. George was trying to establish a trucking business of his own. John said he felt an obligation to help, so that although he hadn't $10,000 to spare, he did send to George by post office orders $7,500 in 1975 and a further $1,400 at the beginning of 1977. He produced bank passbooks showing withdrawals of the two amounts as some confirmation of this. George denies these events occurred. George's evidence, under cross-examination, had some consistency with John's evidence, however, in that George confirmed that he was short of money at that time and that he was trying to build up a trucking business. It was also John's evidence, denied by George, that in 1978 he accepted a proposal by George that, instead of repaying the $8,900 in cash, George would build a shed on John's land at Lot 17 Rockingham, which could be used in the family business in the meantime. A shed was built by George in 1978, on Lot 17 Rockingham. While George asserted this had cost some $7,500, in fact under cross-examination it appeared that only $4,500 was outlaid. The remaining $3,000 was explained as an estimate of the value of George's own labour on the flooring. George contended that his construction of the shed on Lot 17 Rockingham, at the expense of the family business, demonstrated that at that time he believed, and acted to his disadvantage on the basis, that Lot 17 was in truth his and that John had no interest in it. As a matter of an assessment of the relative credibilities of John and George as they gave their evidence on this issue, however, I am persuaded that the evidence of John regarding the $8,900 and the shed is to be preferred. It also has some external and contemporary support, in my finding, from the bank passbooks and the construction of the shed.
After the death of the father, in the 1970's George diversified the family business to use Rowley for cattle. For this purpose some fencing and yarding was built and a dam formed and stock was run. Eventually this venture was abandoned as changing market conditions caused it to become unprofitable. Some significance was sought to be attached to the fencing as part of John's case, as it included a fence which approximately subdivided Rowley into two equal blocks. It was contended this involved a recognition by George that John had a continuing half interest in Rowley, contrary to George's evidence, and indicated that it was anticipated by George that the time would come when, on partition, each brother should take half of Rowley as his own. For my part, however, it appeared to me that the fencing and yarding was explicable as an ordinary and sensible stock management layout and I was not persuaded that there should be seen to have been the deeper significance which the submissions for John would attach to the fencing.
Since the cattle venture, the more suitable parts of Rowley have been used for crops as part of the family market gardening business. Only parts are suitable for vegetable crops. For this purpose, in the 1980s quite extensive irrigation improvements were made together with earthworks. A work shed and a staff shed have been constructed. Rowley is in regular, though not necessarily constant, and apparently profitable use by the family market gardening business. Indeed it is part of George's case that Rowley is essential for the continued wellbeing of that business, although for reasons which will appear I am persuaded there is a different reason why George is so keen to acquire the sole title to it.
In 1978 George built a new home for himself and his family. He built this on Lot 16 Rockingham which is the Lot which became his under the terms of 1974 deed of family arrangement. The original family home built by the parents is also on Lot 16, but toward the boundary with Lot 15 (Boris' land). There was difficulty accommodating the house design, which George and his wife Gloria desired, on the Rockingham Road frontage of Lot 16, in the space left between the original family home and the boundary with Lot 17. The plans presented to the local authority for approval for the new home showed the minimum required setback of the north side of the house from the boundary with Lot 17. In fact, however, as constructed, the home is nearer the boundary than the plans indicated. It is, however, constructed entirely on Lot 16 even though to achieve this the house has had to be cramped close to the old family home and built closer to the boundary than the plans indicated and the by-laws would permit. At some time or other George then built a fence on the northern side of his house, there not having been such a fence before then. A survey reveals that this fence was erected in fact on Lot 17. The position of this fence creates the impression that the house is setback from the northern boundary of Lot 16 by the required amount, ie in accordance with the approved plans whereas, in truth, the fence but not the house has encroached on to Lot 17. Even so, the new house is built so that it is as close to the old home as the building by-laws allowed and the new home may be seen to have been squeezed into the available frontage space on Lot 16. While George sought to assert that his encroachment with the fence demonstrated his then belief that Lot 17 was his and not John's, George was not able to offer any satisfactory explanation for the lengths gone to accommodate the new home within Lot 16 by the means I've described if, as was his firm belief on his evidence, he had available to him the whole of the immediately adjoining and equally desirable Lot 17 by virtue of John's abandonment of his interest in Lot 17 in favour of George. In my view of the evidence, had that been his honest belief at the time, at the least George would have raised the matter with John to explore the possibility of securing the transfer to him of Lot 17, or he would simply have built the house on Lot 17 rather than cramp the house and mislead the local authority. It is to be noted that this was the same year that George built the shed on Lot 17 Rockingham. On his evidence he built the shed in the belief and on the basis that Lot 17 was his. Yet his approach in the matter of the house was quite the opposite. The misleading plans persuade met that George did not honestly encroach with the fence onto Lot 17 as he asserts. I would record that George's apparent discomfiture as he was tested about this matter in cross-examination, which was in contrast to John's demeanour as he dealt with this matter, has played a significant part in my assessment of the truth about this matter, as is also the case with the several other matters in respect of which I mention in these reasons that I have come to prefer one version of the evidence over another as a matter of personal credibility.
Events of 1982 and to the present
Mrs Yoka Radonich, the mother of the family, died on 10 July 1982. She too died intestate. John returned to Perth for his mother's funeral. It was the evidence of George that at this time John informed George that he was not interested in any of his mother's property and in effect that George should have whatever might be John's entitlement from his mother's property to use as George liked. George stated that this only served to further entrench his belief that John had relinquished in favour of George any interest or entitlement John had to any of the family properties including Rowley. John staunchly denied all of this.
John's evidence was that during this visit to Perth for his mother's funeral he and George once again visited Rowley. John recalled previous conversations in the 1970s, and in particular one in 1980, when George and he had discussed the possibility of selling Rowley. In the 1980 discussion it was John's evidence that George was proposing subdivision and sale of Rowley as prices had risen and sale could result in a good return. He had made some rough calculations of the possible return. George wished to generate some capital. John said he agreed to George's proposal when his consent was requested. George's evidence, however, was that the 1980 conversation was merely as a matter of courtesy. He did not seek John's permission and none was given. He considered he was dealing with his own land and John made no demand or suggestion that John should in any way share in the proceeds. Again, as a matter of personal credibility, I considered that the evidence of John on this matter was to be preferred.
On the occasion in 1982, following the funeral of their mother, John enquired how the plans for subdivision of Rowley were progressing and was informed by George that he had deferred the idea as the land was to be reclassified for residential use and the value would be higher. John's evidence was that because of this he agreed with George to wait before selling the Rowley property. These events were denied by George. Again, as a matter of personal credibility, on this issue I preferred the evidence of John.
Significantly, in 1984 there was another deed of family arrangement in relation to the mother's estate which was executed by John, George and Boris. This deed was prepared on the instructions of George by a different firm of solicitors. By the terms of this deed the mother's estate was to be distributed by transferring:
•Lot 123 Churchill to George,
•Lots 124 and 125 Churchill to Boris, and
•Lot 126 Churchill to John.
As with the 1974 deed I am satisfied John made a trip to Perth to see to its execution and the comments which I made and the implications I drew from his trip to Perth to execute the 1974 deed are repeated in respect of the 1984 visit to Perth.
The evidence of both George and John with respect to this deed was in broad effect similar to their evidence with respect to the 1974 deed of family arrangement. George explained it as having been prepared on his instructions but they had merely reflected the legal advice he had received that it was, as he understood it, a legal requirement that the three sons should share in the mother's estate. He dismissed it as merely a necessary legal formality to wind up the mother's estate and not evidencing any wish of John to receive any entitlement from the estate or to have any interests in any of the real estate that had been owned by their mother. The deed did not, on George's evidence, countermand or contradict John's stated position that, as George effectively described it, any property interests of John's were George's to use as he liked.
As with the 1974 deed, on John's account the deed reflected both his continuing interest in the lands and the affairs of the family and the acceptance at that time of George and Boris that he had a continuing right to an interest in the disposition of the family properties. It was John's evidence that, as he had done at the time of the 1974 deed and when his father died and when his mother died, at the time of the 1984 deed he was prepared to allow George to have continued use of Lot 126 Churchill, as had been the case before their mother died, for the purposes of the family business. I will return to this deeply disputed issue later in these reasons.
The Churchill properties had been in profitable use for the family business since the mid 1950s when John assisted his father to negotiate an arrangement for limestone to be quarried from the properties. This was still the case when the father died in 1970 and for some years after that, by which time they had become the property of the mother. Nevertheless they continued to be used for the financial benefit of the family market gardening business even though the mother was no longer a partner in that business. George seems to have managed their use. In the late 1970s he commenced a process of filling the quarry site under an arrangement by which waste material was dumped at no cost . Quarrying had ceased. On a couple of occasions he acquired and spread soil as part of this process. By 1984 the filling was nearly complete. This filling greatly improved the value of all four lots. This was completed in 1989.
Since the deed of 1984, although utilising changing legal structures, it may be said that in practical terms George has continued to conduct the family market gardening business using the Rockingham properties and to a limited extent Rowley.
John has continued to return to visit the family occasionally in the years following the death of his mother, much as he had in the years before his mother's death. These visits may generally be described as irregular and occasional and most usually were associated with an event of family significance. He visited at least in 1982, 1984, 1988, 1989 or 1990, twice in 1993 and 1995. In more recent years he was usually accompanied by Yvonne. Usually he stayed with George or another family member. While there was dispute in this respect in the evidence I am satisfied it was his practice, both before and after his mother's death, to visit each of Rowley, Lot 126 Churchill and Lot 17 Rockingham during these visits, sometimes in company with George or another family member, and sometimes on his own. He would usually go onto Rowley and Lot 17 Rockingham, but not always Lot 126 Churchill. Sometimes he visited Rowley more than once a visit. He did not usually help out with the market gardening work on these visits although I am satisfied he did so on more than one occasion, despite evidence to the contrary.
During the visits to Perth he would discuss with George developments relating to each of the three properties, as he did in between visits by telephone.
Some particular visits must be mentioned.
In 1988 John was retrenched from his work in the building industry in which, until then, he had been quite successful. By then, he and Yvonne were living in Victoria where they owned a house and were developing other financial interests. I am persuaded that the retrenchment caused John to take stock of his future, which led him to consider seriously the possibility of returning to Perth. He visited Perth and I am satisfied that he discussed with George the sale of Rowley to raise capital for himself and also the possibility of building a house for himself on one of his lots. While their evidence differed in many respects, I am persuaded that during this visit George proposed that John should get less than half of the proceeds of any sale of Rowley to provide some compensation to himself because of his efforts over the years in developing and maintaining John's properties, and that John disagreed with that proposition because of the income that George or the family business had received from the land. I am also satisfied that it was George's clearly expressed preference that John remain in Victoria.
At the time of the 1988 visit George also raised with John his concern that John's land, ie all three properties, would go to Yvonne if John should die without a will, which could "make things complicated". On John's account George requested he go with him to George's solicitors to sort this out. George and he did so and he made a will providing for these properties to be shared equally by his brothers - Boris and George.
George however presents that matter of this will in a quite different light. He says it occurred in 1984 at the time of the deed of family arrangement. On George's evidence he expressed a concern for John to "tidy up the paperwork" concerning their mother's property. This would necessarily relate to Lot 126 Churchill which pursuant to the deed was to become John's land. The implication of George's evidence is that the Will was the means of overcoming and correcting the effect of the unwanted legal necessity of the title to Lot 126 Churchill being transferred to John, when John had abandoned his interest in that property in favour of George. George's evidence described how on the way to the solicitor, in discussion, John asked George what he wanted done and John agreed with George's request that everything in the Radonich name should be left to him, and that having gone to the solicitor John assured him he had done so. Even on George's evidence the questions arise why a will was seen by John, George, and by the solicitor, to be the most effective way of achieving the desired ultimate result whether it be of Lot 126 Churchill, or of everything in the Radonich name, being transferred to George, when John wanted nothing to do with any of the properties.
These are, however, other difficulties in the way of accepting George's account of these matters. The will is in evidence. It was made in 1988 at the time of John's visit to Perth in that year. It was not made in 1984. In support of John's evidence that George's concern was in respect of all three properties, not just Lot 126 Churchill as George's evidence initially suggested, there is evidence which I accept and which persuades me that the night before John went to the solicitor with George to give instructions for the will, George's wife Gloria turned out their records and made a note for John of the descriptions of the three properties. I am satisfied on balance that the episode concerning the will occurred in 1988 and that, as John said, it arose because of George's concern in respect of the consequences for the family business should all three properties pass to Yvonne.
The will was in respect of all of John's estate and provided primarily for it to be shared equally by Boris and George. This is quite inconsistent with George's case that John had abandoned his interests in the three properties in favour of George. I notice that John made a further will in 1994 by which in effect any land or interest in land in Western Australia which he owned, together with any estate or interest he had in the estates of his mother and father, were to be shared equally by Boris and George, but all else was to go to Yvonne. The inconsistency with George's case persisted. Further, the terms of the 1994 Will reveal that, in John's mind, he had not rejected any inheritance that had come to him from the estates of his parents. Thus, the terms of the 1988 and the 1994 Wills in my finding, tell against George's case by providing some contemporary indication that when they were made John did not hold the views on which George's case so heavily depends.
John came to Perth in 1989 or 1990 for the wedding of George's daughter and in each of the years 1990-1992 there were visits to Melbourne by George and various members of his family. They visited John and Yvonne on each occasion, some of George's family staying with John and Yvonne. George places significance on a conversation with John during one of these visits. He described a social discussion, which included friends, in which John described in very favourable terms how well he'd become established in his affairs and in which George described the financial difficulties he was experiencing with the family market garden business and set out his plans for the future development of the business including its use of the three properties. On George's account John made no comment, showed no interest and raised no objection to any of George's views about the use of the properties. This helped to reinforce in George's mind, on his account of what occurred, that John continued in his position that he had no interest in any of the properties and that George could do with them as he wished. John recalled that occasion but on his evidence had understood the import of what was being said by George quite differently from George's evidence and did not see in what was said by George any occasion or reason to understand that George was regarding any of the properties as his own or to raise any such issue. Milenko Mihaljevich was among those present. He recalled some discussion of John's affair and George briefly putting a more gloomy picture of the position of the business in Perth. He did recall that at one stage John had said to the effect that he wouldn't be coming back to WA but otherwise his evidence on this matter did not assist to resolve the differences between the evidence of John and George about this meeting. At this time John was in good work in the construction industry, which may provide some explanation for some comment concerning his intention, at that time at least, to say in Victoria. I am not able to accept from the evidence concerning this incident that it presented an occasion on which it was reasonable to expect that if John maintained a claim to any interest in any of the three properties it was to be expected that he would publicly assert it, nor that there was in effect a clear assertion of or claim by George to the effective ownership of the three properties (sole ownership in the case of Rowley), such that by his silence it might be thought by George that John was acquiescing in such an assertion or claim. The evidence does not demonstrate that this was an occasion which could reasonably have been understood by George as giving rise to any such inference.
In particular in July 1993, during the second visit by John and Yvonne to Perth in that year, I find that John renewed discussions with George about the sale of some of his land, canvassing particularly Rowley and Lot 126 Churchill, and the possibility of his returning and building a house on one of his lots. George remained opposed to the sale of any properties arguing that they were needed to maintain the viability of the family business and he repeated his preference that John remain in Victoria. Tension was developing between them.
While John pursued with George the prospect of him building a home on one of his lots at least on each of the 1988 and July 1993 visits, it is my finding from the evidence that there was no firm plan on the part of John to return to Perth. It was a possibility, one which may have been stronger on his retrenchment in 1988 than in later years, but at the same time the evidence indicates that Yvonne may have preferred to retire to the coast of southern New South Wales which would be nearer her family interests. As much as the evidence reveals there was no resolution of this issue between John and Yvonne. Even so, it is clear in my view of the evidence, that he was seeking to achieve some indication of the attitude of George and the family to his return. I would describe John's posture and intentions as exploratory. He was seeking to see whether there was some satisfactory basis upon which he and Yvonne might re‑establish themselves with the family in Perth. If a satisfactory basis did emerge then, clearly, Yvonne and he would have needed to resolve whether to do so. But if not, in deference to Yvonne's preference, on balance I would think it more likely that he would have sought to arrange with the family some satisfactory financial realisation of his property interests in Perth and retire to the New South Wales coast. It is clear that George's preference for John not to return to live in Perth, first expressed in 1988 became a significant deterrent against John reaching a decision to return to Perth. John's readiness to contemplate returning to Perth also varied with availability of work in the construction industry. This was variable and it is my impression that John's active interest in returning to Perth was higher when construction work was not available.
George's general position over the years 1988 - 1993, as I perceive it from the evidence, may be summarised as one of opposition to any sale of land. He pursued this principally by raising objections to John's proposals, urging a deferment of action to get better values, and by promising to come up with some firm proposal in the future. From all the evidence, I am persuaded that even by 1988 it was George's wish to preserve intact the Rockingham and Churchill properties and Rowley. While it was his evidence that the Rockingham properties and Rowley were essential for the future needs of the family business, and that in any event it was his adamantly expressed philosophy never to sell any land, as will appear I am satisfied that another objective had emerged.
I am persuaded that during the July 1993 visit, George ventured to John that he would come up with a satisfactory sale proposal in respect of John's properties in a couple of years when values were likely to be better. In 1993 John had roughly estimated his properties were worth $1,000,000, which in my view of the evidence was an underestimate. George suggested they were worth about half that figure and there was also maintained by George the issue of compensation to him for his efforts in developing and maintaining them. There was also, in my finding, discussion of a concern raised by their mother in 1970 that Boris should have some share in the proceeds of the sale of Rowley, to which George was opposed.
The issue of sale was taken up again in a more significant way in July 1995. There was a meeting between George and John in Kuala Lumpur, where John was working in the construction industry, and where George's son was on a practical placement as part of his tertiary studies. In the course of these discussions there was a proposal aired by George that he would make John a lump sum payment of $200,000 on the basis that John should transfer his interest in each of Lot 17 Rockingham and Rowley to George, but John retain Lot 126 Churchill. The time for payment, however, was to be deferred until such time as George deemed it appropriate to sell one or more of his other properties. He contended that market conditions were particularly adverse at that time. This offer was made by George on the professed basis that, according to legal advice he had received, John no longer had a legal interest in any of the properties the subject of dispute, and that therefore his proposal that he should pay John $200,000 and that John retain Lot 126 Churchill was really by way of a family gesture to help John. This proposal was not acceptable to John.
Following the meeting in Kuala Lumpur, John wrote an extensive letter to George which I find quite compelling as an indication of the true state of John's thinking at that stage and as to the previous negotiations between him and George, as John had perceived them. Nothing came of this approach and within a few months solicitors had been retained and events were put in train which led to these proceedings.
Changes in the Family Market Gardening Business
There have been some significant changes affecting the family business and George's activities in more recent years. George had been successful since 1975 in establishing a trucking company. This is now quite substantial and profitable. Further, the family market gardening business has been expanded dramatically, first by the acquisition and use of a property at Gingin in 1989, and more recently in December 1998 by the acquisition for some $1,000,000 of a very substantial property of some 100 hectares at Lancelin. This was chosen after extensive research and investigation as a site suitable for a major modern market gardening operation, being capable of being efficiently managed according to current crop rotational needs. George's sons, each of whom have tertiary qualifications in horticulture, are engaged in the family business. George and Gloria have moved from Lot 16 Rockingham to a much more modern and elaborate home. The family business is now a very significant financial and physical undertaking. The Churchill Road properties are not used for growing crops. A part of Rowley Road is used regularly though not continuously. The Rockingham Road properties are still used regularly but they are no longer the centre piece of the gardening operation as production from Gingin and Lancelin entirely overshadows them. The trucking business operates separately in that its main contract work seems to be associated with local government contracts, although it does also have a role in the cartage of produce from the Lancelin and Gingin properties. The family business is, however, very heavily committed to its bankers especially by virtue of the acquisition and development of the Lancelin property.
Zoning, Subdivisional Issues and the Bank
It was George's position, adamantly maintained during his evidence and despite everything, that his concern in this action was to preserve Rowley and the Rockingham properties for use as essential parts of the family market gardening business. That position was reinforced in respect of all three disputed properties by an underlying philosophical view that no property should be sold, it should be retained for the family in the future. Cultural as well as personal values were advanced in support of this attitude.
It was surprising to learn in the course of the trial, therefore, that there had been activities involving the defendants, in which George played a central role which were relevant to these issues, materially so in some respects, which had not been the subject of discovery by the defendants and which were not dealt with at all in the statements of the defendants witnesses. By direction, statements had been exchanged between the parties before trial and these formed the substance of the evidence-in-chief of each witness at trial. The failure to make proper discovery had to be dealt with, as far as possible, under pressure during the trial at great inconvenience to the plaintiff's representatives.
These activities included the purchases of properties for use by the family business as market gardens at Gingin and in particular the major purchase at Lancelin, efforts over some years to secure the rezoning of both the Rockingham Road properties and Rowley, and the development of a detailed residential subdivisional proposal for the Rockingham Road properties which, with minor modification, could have been undertaken in association with the subdivision of neighbouring properties or as a discreet subdivision, and a commitment by the defendants to their bankers to the sale of Rowley if certain financial targets were not met by August 1999. In the course of some of these matters it is clear that George had purported to act as the authorised agent of John, when that was not the case and George could not honestly have thought it was. He had forged John's signature. George had told John nothing of these matters except for the purchase of the Gingin property.
In respect of the purchase of the Gingin and Lancelin properties it was maintained for the defendants at trial that these were reasonably viewed as not relevant to these proceedings. While I disagree, such a view if held by the defendants' legal advisers may well explain that aspect of the failure to make proper discovery and the omission of the new properties from the statements of evidence.
With regard to the rezoning and subdivision issues, however, the position cannot be explained away. It is clear from the evidence that these activities had not been disclosed by the defendants to their solicitor until the preparation for this trial was well underway. Even then their solicitor came upon an aspect of what was occurring in relation to Rowley almost by chance. There followed a confrontation between George and the solicitor, as the solicitor well appreciated that this conduct appeared to materially contradict his instructions. The solicitor was, in the end, called to give evidence at the trial. I am satisfied that George then persuaded the solicitor that these matters had long ceased and had only been undertaken as strategies to dissuade the planning and zoning authorities from rezoning the Rockingham Road properties as part of a proposed school site, and from rezoning Rowley for a water or marine park and/or a regional highway. I am persuaded that each of these possibilities had been real and that in respect of each of the pieces of land there had been developed by George, along with his planning advisers and in the case of Rockingham with his neighbours similarly threatened, a strategy of trying to improve the zonings of the two holdings so that the public authorities would be persuaded to turn their attention to less valuable land for these public purposes. But I am also satisfied on the evidence that this was only part of the story. The rezoning and subdivisional proposal for the Rockingham properties was actively pursued, and significantly further developed at considerable expense to George, well after the threat of a school rezoning had been removed. Indeed, I am satisfied George was still pursuing this when the defendants' solicitor confronted him over this very issue and that he deceived the solicitor and persuaded him it had been a mere strategy and was a thing of the past. The evidence persuades me that, despite George's denial, he was active in developing the subdivisional proposal until September 1998, and that he only stopped the planning advisers then because he was concerned that if that activity became known it would harm his prospects in this action. With respect to Rowley the evidence reveals the position to be much the same, although less dramatic, and that George deceived the solicitor into the belief that this too was a thing of the past and had been merely a strategy. As will appear I am persuaded that George was activated by personal interest in these matters.
Returning to the issue of discovery, however, I regret to have to say that having satisfied himself from George's deceitful explanations that there was an innocent explanation for these matters, the solicitor mistakenly decided that they could have no relevance in this action. He returned the papers to George and they were not discovered. It is disappointing indeed that such an experienced practitioner should have fallen into this fundamental error. In effect he tried the issue and made a finding in favour of his own client. That is not his role in the matter of discovery. The potential relevance of these matters and of the documents to this action had been glaringly obvious to the solicitor; hence his confrontation with George. They should have been discovered. Fortunately, the preparation of the plaintiff's case was so thorough that documents concerning the rezoning and subdivisional efforts were uncovered through other sources and the matter came to be fully aired before me.
George's credibility should not suffer because of his solicitor's mistake. But the deceit of the solicitor by George stands out clearly as a matter adverse to George's credit, especially so because of the relevance in this action of the point of the deceit. It is also my finding that George deliberately kept these matters from John even though they were well underway in respect of both Rowley and the Rockingham properties before the Kuala Lumpur meeting in 1955.
There are, however, reasons beyond the decision of the Full Court in Ghilarducci, and the proper construction of the terms of s 14 itself, for rejecting the case of George on this issue.
This case arises in the context of an action by John to recover his land which is occupied by George. George claims to have dispossessed John of his interest as joint tenant in Rowley. This is a case within s 5(a) of the Act. The effect of s 5(a) is that the time at which John's right to bring an action to recover Rowley first accrued is when George dispossessed him - which can be sufficiently stated on George's case as being at the end of 1957 (or in 1958) following John's departure for the Eastern States.
Section 5 relevantly provides:
"5. In the construction of this Act, the right to make an entry or distress, or bring an action to recover land or rent, shall be deemed to have first accrued, at such time as hereinafter is mentioned, that is to say:-
(a)When the person claiming such land or rent, or some person through whom he claims, has, in respect of the estate or interest claimed, been in possession or in receipt of the profits of such land, or in receipt of such rent, and while entitled thereto has been dispossessed, or had discontinued such possession or receipt, then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were or was so received."
As John's action is within s 5(a), by the opening words of the section the provisions of s 5(a) apply "In the construction of this Act …". In determining when it was that John was dispossessed by George within the meaning of s 5(a), ie when John's right to bring the action first accrued, the last paragraph of s 5 is critical. Relevantly it provides:
"For the purposes of this section, the right to … bring an action to recover any land, has not and shall not be deemed to have first accrued … until such land is in the actual possession of some person not entitled to such possession, …." (Emphasis added).
In my view, the words "not entitled to such possession" can only mean in this context that the possession must be adverse to the true owner. This is how they have been viewed in all the decided cases in this State. Hence, in construing s 5(a) the possession on which George relies in his defence to John's claim must be a possession to which George was "not entitled"; it must be possession which was adverse to John's legal interest in the land and to John's enjoyment of that interest.
This critical last paragraph in s 5 is the provision which had no counterpart at all in the 1833 UK Act. It also had no counterpart in the legislation of the Bahamas, which was based on the 1833 UK Act, and which was the subject of the Paradise Beach decision. The presence of the last paragraph in s 5 precludes a view being taken of the Western Australian Limitation Act 1935 that its terms and operation do not involve any distinction between possession in the sense of mere occupation, and adverse possession. That was the view of the Bahamas legislation, and of the 1833 UK Act, which appears to underlie much of the reasoning in the Paradise Beach decision. For present purposes the WA Act of 1935 expressly, in my view, retains that distinction. Thus, in my view, by virtue of the opening words of s 5, the notion of possession by a person "not entitled to such possession", ie adverse possession, remains critical to the success of George's case.
In my view, therefore, as a matter of precedent, on the ordinary construction of the terms of s 14, and by the necessary operation of s 5(a), the case of George in respect of Rowley must fail if George's occupation and receipt of profits from Rowley was with the consent or permission of John, ie as a licensee of John.
I note the submission for George that the introductory words of the last paragraph of s 5 are "for the purposes of this section …" so, it is advanced, it should not be applied to any other section of the Act including s 14. That submission, in my view, fails to recognise that it is section 5(a), not the last paragraph of s 5, which operates in this case. Section 5(a) applies "In the construction of this Act …". The last paragraph of s 5, however, informs the meaning and operation of s 5(a).
I am also conscious of the evidence of George that Rowley was still vacant land to which nothing had been done by John when John left home in 1957 and that it was George who first went into physical occupation of the land in 1958 and commenced to work it. To the extent that this may have been directed to showing that John had never been in possession of Rowley, so that s 5(a) could not apply in this case, there are a number of difficulties in the way of any such approach which preclude its acceptance. In particular I accept from the evidence that between the acquisition of Rowley in 1955 and John's departure in 1957, John with George and their father did quite a bit of work on Rowley which included some fencing, some clearing and the planting of olives, at the expense of the then family business. That experiment proved unsuccessful so that in 1958 in my finding George and his father tried other crops, again at the immediate expense of the family business. There can be no doubt that John was in physical and legal possession of his undivided interest in Rowley as joint tenant when he left WA in 1957. The case George seeks to make, therefore, necessarily involves the dispossession of John or the discontinuance by John of his possession and is therefore within s 5(a).
I turn now to consider the nature of George's occupation and use of Rowley. It is relevant to consider the position from the time it was first acquired by the father in 1955 and registered by him in the names of John and George as joint tenants. Although it is not in accordance with the evidence of George, as earlier indicated, I am satisfied that John and George both then accepted the father's view which I would summarise as being that Rowley was a good long term realisable investment which could be usefully used in the meantime for the family business. I am satisfied that both John and George accepted the father's ideas for the future of Rowley so that with the father they did some clearing, fencing, put in fire breaks and commence olive planting. This work continued until 1957. On balance, as indicated earlier, I am persuaded the funds for this were provided by the father from the family market gardening business of which George was not then a partner and I am persuaded that the likelihood is that the development of Rowley was treated as part of the undertaking of the family market gardening business under the primary influence of the father. An aspect of this state of affairs in my view is that, from the beginning, outgoings such as rates and taxes were paid by the father as an outgoing of the family market gardening business. As indicated elsewhere, I've been unable to be satisfied that there was a distinct partnership between John and George or that the development of Rowley was undertaken by any such partnership or by George separately from the family market gardening business.
It was against that established pattern that the events of 1957, when John left home, come to be viewed. For reasons given I am unable to accept the evidence of George of John's express rejection of any interest in Rowley and the family market gardening business when he left or of his relinquishment of his rights to Rowley in favour of George. Instead, I am persuaded that there was no express conversation or arrangement between John and George regarding Rowley when John left. Their attention at the time was focussed on the new trucking venture which John was embarking on. As best I can determine, John departed under an assumption that Rowley would continue to be developed and managed as it had been since it was purchased, although without him helping with the work, but with the family market gardening business continuing to meet the expenditure and having the benefit of the returns. His understanding or expectation in this regard can be understood having regard to the pattern that had already been established and the continuing influence of the father. In my assessment of the evidence his expectation proved well founded. While George in his evidence suggested that all that occurred after John left home with respect to Rowley was at George's instigation and at his expense, that does not, in my finding, reflect what occurred. I have no doubt that George had views and that these may well have been a factor in determining what occurred. Nevertheless, the evidence sufficiently indicates, in my finding, the continuing role of the father in decisions concerning, and in the work actually done on, Rowley until his death, and all the circumstances lead me to the conclusion that the funding came from the family market gardening business at the father's instigation.
To what extent, if at all, the accounts of the family market gardening business might have maintained some differentiation of Rowley or of George's interests is simply not established by the evidence which I am prepared to accept, so that it cannot be concluded that in truth George eventually met the costs of Rowley or received the profits except insofar as he had any notional return from the activities of the family market gardening business in which he became a partner sometime after John's departure in 1957.
Thus, in respect of Rowley, it is significant that John has received no returns from Rowley since he left in 1957, and John has not met any of the expenditure of owning, maintaining, developing or producing from Rowley since 1957. George has effectively enjoyed the sole occupation of Rowley since 1957, subject to John's visits, inspections and discussions with George over the years, the general nature of significance of which have been sufficiently identified when dealing with Lot 17 Rockingham. Since the death of the father in 1970 George has, in fact, had possession of the duplicate certificate of title of Rowley and has had the effective day to day management of Rowley on behalf of the family market gardening business.
It is also material that John and George were not strangers; since 1955 they had a joint right of possession of the whole of Rowley by virtue of their joint tenancy. With that George always had a joint right to use all of the land and have its profits and also an obligation, jointly with John, to meet rates, taxes and other outgoings of ownership. There is no direct evidence which I accept of ouster of John from his right of joint possession and, with the rejection of George's evidence directed to establishing a voluntary discontinuance by John of his joint possession, there is no direct evidence of such discontinuance. Self evidently, John and George were not at arms length and were not dealing as strangers in respect of Rowley. They were both joint owners and brothers, the latter being of particular significance because of the strong sense of family responsibility and the significant influence of the particular culture of the family in ordering their lives and affairs. There was no specific discussion of any terms relating to George's occupation and use of Rowley, either when John left or at any time since then; at most there was an assumption that Rowley would continue to be used and managed much as it had been before John left. No rental was ever considered or agreed and none has ever been paid and there has never been any term considered or agreed for the continuation of George's use and occupation. No other terms have ever been expressly considered or agreed, nor has there ever been any written agreement contemplated or effected between them concerning any of these matters.
After the father's death, in my finding, there was no specific discussion of Rowley except for some brief canvassing between John and George in the presence of their mother of the possibility of it being sold, which possibility was not pursued. Otherwise, the conversation that did occur has been canvassed when dealing with Lot 17 Rockingham. The practical outcome was that George was to step into their father's shoes and run the family market gardening business instead of John and I am satisfied that it was implied or assumed by both that George could continue to have the use of Rowley for the time being for the purposes of the family market gardening business on the same basis that had prevailed since before 1957, this being a position that suited the interests of each of them at that time. As indicated previously no terms were then or later discussed or agreed, the past pattern merely was continued, and in particular no duration was considered or agreed nor could one reasonably be implied.
As with Lot 17 Rockingham, the evidence reveals the strong relevance in what occurred, both in 1957 and over the years that followed, of family considerations. In my view of the facts there was no sense of the creation of any legal rights or obligations in respect of Rowley. The pattern of family management of its affairs was simply adjusted to accommodate, in a practical way which suited everyone, the circumstance that in 1957 the eldest son left home. Throughout the life of the father, and indeed of the mother, there remained an expectation of John returning at some time and John never foreclosed that prospect. After the death of the father there was a further adjustment with the way in which the family managed its affairs to accommodate the loss of their father and to provide for the future conduct of the family business in a way which best suited the principle players namely John, George and their mother.
While George enjoyed, at least substantially, sole occupation of Rowley I am unable to conclude he ever had a legal right to sole exclusive possession Rowley. In my view he remained a joint tenant with the legal rights and obligations which flowed from that, but in my finding, any privilege he enjoyed beyond that was by way of license from John, a license which could have been revoked at any time and which was not accompanied or coloured by any contractual obligation. When the full circumstances are considered they do not establish, in my finding, that George's occupation and use of Rowley was pursuant to any right to possession to the exclusion of John or any other form of legal right beyond that which was his as the joint owner. In my finding his use and occupation were with the permission of John, indeed it was in a real sense for John's purpose in that it was to assist the welfare of John's family. In my view George was a licensee of John in respect of any use or occupation he enjoyed of Rowley beyond that which was his entitlement as joint owner.
It follows in my view of the operation and effect of s 14 of the Limitation Act that George's occupation and use of Rowley were always with the permission of John and therefore were not adverse to John's lawful title and right of possession. For the reasons given George's claim insofar as it relies on s 14 of the Limitation Act must fail.
Implicit in what I have said is my rejection of any view of the proper operation of s 14 which would enable the fact of the receipt of the profits of Rowley by George, with the consent and permission of John, to give rise to any statutory entitlement in George and to the extinguishment of John's title as joint tenant by virtue of the operation of s 30 of the Act. It would make a nonsense of the legislative scheme for possession by consent of the owner not to give rise to the extinguishment of title but for receipt of rents by consent or permission of the owner to do so. In my view any receipt of profits must be adverse to the legal right of the owner to receive those profits, for them to come within the operation of s 14 in this context.
The Second Defendant
As I understand the case for the defendants it is not pursued on the basis of any right in the second defendant which arises independently of the claims of the first defendant, George. As George's claims have failed, so must the claims of the second defendant.
Other issues
The statement of claim sought mesne profits and damages although these issues were not actively pursued in evidence or submissions. I will proceed on the basis that they are not a live issue at this stage of the proceedings.
By the defence and counterclaim the defendants inter alia sought an accounting for benefits that the plaintiff would receive, by virtue of the work and expenditure of the defendants over the years, in the event that the defendants failed in their primary claims to title. An accounting was also sought with respect to rates and taxes, charges, insurance, outgoings and expenses of a recurring nature which the defendants met in respect of the properties over the years. No attempt was made to prove the quantum of these claims in full on the basis that they would be the subject of a subsequent accounting should the claim for an accounting be granted. There was some evidence directed, it seems, to establishing the expenditure of the defendants which was claimed to have improved each of the three properties, and hence their value to the plaintiff. This was led generally in support of the claims of the defendants in equity. I have recorded my findings in respect of this evidence elsewhere in these reasons.
While the defendants have unquestionably expended in total quite an amount of money and a considerable amount of effort in respect of the properties over the years, including much of the sums identified in the evidence of George and Gloria although in my finding not all of them, it is apparent that much of that expenditure was necessarily incurred in respect of achieving the production which the family market gardening business has had from the use of Rowley and Lot 17 Rockingham over the years, the profits from which have been retained in their entirety by the family market gardening business and so have benefited directly the second defendant and indirectly the first defendant. While the evidence does not permit any precise quantification it is my finding from the evidence that the defendants have benefited substantially from the use they have had of Lot 17 Rockingham and have, at least overall, benefited from the use they have had of Rowley. The evidence certainly does not establish the contrary. While Lot 126 Churchill had provided a useful regular financial return to the family business while it was let out and used for the quarrying of limestone that use had ceased before the 1984 deed of arrangement pursuant to which John became the registered proprietor. Since then Lot 126 Churchill has not been generating income and in fact some expense has been incurred in respect of it by the family business, and hence indirectly by the first defendant, before the formation of the second defendant, and by the second defendant since then. This involved the completion of the filling-in of the quarry which had spread over all the Churchill properties. That work had been at least substantially complete before the 1984 deed, while the land was still owned by the mother. Even then the work appears to have been undertaken under the auspices of George and at the expense of the family market gardening business. While Churchill has not in fact returned any income for the defendants since the 1984 deed, and there has been some expenditure in respect of it, it has nevertheless suited George to retain the four lots. In my view this found expression in George's comment to John in 1993 to the effect that there was the prospect of a better return on realisation if all the lots were retained than if individual lots were sold. I am satisfied, however, that if one considers overall the three lots in question in these proceedings, both the second defendant and indirectly the first defendant have benefited significantly financially from John's preparedness to allow them to be available to be used by George for the purposes of the family market gardening business as George considered appropriate.
In these circumstances, and having regard to the conduct of the parties considered elsewhere in these reasons, I am not persuaded there is any entitlement to, or that it would appropriate for there to be, an enquiry into any benefits and an accounting of the type sought by the defendants.
Relief
In my view the plaintiff has made out his claim to be entitled to delivery up of the duplicate certificates of title and to delivery up of possession in respect of Lot 17 Rockingham and Lot 126 Churchill. I am also persuaded that the plaintiff and the first defendant remain joint tenants in respect of Rowley. The plaintiff sought severance of the joint tenancy and an order for sale of Rowley. I will hear counsel further in respect of this relief.
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